(Super. Ct. No. 93F03159)
The opinion of the court was delivered by: Blease , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Javad Jafarnajad guilty of two counts of committing lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)), based on his molestation of N.M. that took place approximately 17 years before the time of trial, while he was acting as her guardian.
In connection with a motion for new trial, defendant moved to unseal juvenile dependency proceedings files involving N.M. In support of his request, defendant stated that N.M. had made inconsistent statements concerning the allegations of molestation and he sought disclosure of his own statements, as well as any made by N.M., about or to each other. The trial court reviewed the records in camera and concluded that there were no discoverable documents contained in the sealed files, as there were no inconsistent statements that did not already appear to be in defendant's possession.
Defendant requests that this court conduct an independent review of the records and determine whether the trial court correctly ruled. With no authority or meaningful analysis, the Attorney General argues that no review is necessary because "the record shows that the trial court did not exercise its discretion not to turn over responsive documents, but instead found nothing to turn over" and because, unlike Pitchess*fn1 and the other cases cited by defendant, this case involves Child Protective Services (CPS) records, not law enforcement officers' records. Our review of the files is appropriate.
"[T]he due process clause requires the 'government' to give the accused all 'material' exculpatory evidence 'in its possession,' even where the evidence is otherwise subject to a state privacy privilege, at least where no clear state policy of 'absolute' confidentiality exists. [Citation.] When the state seeks to protect such privileged items from disclosure, the court must examine them in camera to determine whether they are 'material' to guilt or innocence. [Citation.] In [Pennsylvania v.] Ritchie [(1987) 480 U.S. 39 [94 L.Ed.2d 40] (Ritchie)], supra, the high court held that a complete in camera review of confidential records generated by a state agency as part of a molestation investigation was required where the defendant claimed they might undercut the complaining witness's credibility and where state law did not bar their disclosure under all circumstances." (People v. Webb (1993) 6 Cal.4th 494, 518.)
In Ritchie, the issue was whether a defendant's rights to confront and cross-examine witnesses and to due process outweighed the state's interest in the confidentiality of its child protective agency's investigative files. (Ritchie, supra, 480 U.S. at pp. 42-43 [94 L.Ed.2d at p. 48], limited on a different ground in Jefferson v. City of Tarrant (1997) 522 U.S. 75, 83-84 [139 L.Ed.2d 433, 442].) The defendant was charged with sexual offenses involving his 13-year-old daughter who had reported the offenses to the police which turned the matter over to the agency. Serving the agency with a subpoena, the defendant sought to discover the agency's investigative files with respect to his daughter and her accusations as well as the agency's investigative files with respect to a prior child abuse report by an unidentified source. (Id. at p. 43 [94 L.Ed.2d at p. 48].) The agency refused to comply with the subpoena, citing the Pennsylvania statute which made the agency's investigative files confidential, "subject to 11 specific exceptions. One of [which allowed disclosure] to a 'court of competent jurisdiction pursuant to a court order.' [Citation.]" (Id. at pp. 43-44 [94 L.Ed.2d at pp. 48-49], fn. omitted.) After a hearing in chambers, the trial court denied the defendant's motion for sanctions against the agency and refused to order the agency to disclose its files. (Id. at p. 44 [94 L.Ed.2d at p. 49].) At trial, the defendant's daughter testified against him and defense counsel thoroughly cross-examined her, without limitation on the scope. The defendant was convicted on all counts. (Id. at pp. 44-45 [94 L.Ed.2d at p. 49].) He appealed, contending that the failure to disclose the agency's files violated his rights to due process and to confront and cross-examine witnesses. (Id. at p. 45 [94 L.Ed.2d at pp. 49-50].) Four members of the Ritchie court, the Chief Justice and Justices Powell, White and O'Connor, concluded in the plurality opinion that the defendant did not have the right to examine the agency's files under the right of cross-examination prong of the Confrontation Clause since the right of confrontation is a trial right, not a right of pretrial disclosure of information. (Ritchie, supra, 480 U.S. at pp. 42, 51-54 [94 L.Ed.2d at pp. 48, 53-55].) They concluded that the Confrontation Clause was not violated because defense counsel was able to fully cross-examine the defendant's daughter. (Id. at p. 54 [94 L.Ed.2d at pp. 55-56].) Justice Blackmun concluded that denial of pretrial access to the agency's file that would facilitate effective cross-examination of a crucial prosecution witness may constitute a violation of the Confrontation Clause. (Id. at pp. 61-66 [94 L.Ed.2d at pp. 60-63] (conc. opn. of Blackmun, J.) Justices Brennan and Marshall dissented, concluding that a violation of the Confrontation Clause occurred in the case since the defendant was denied access to the file and the victim's prior statements with which he sought to impeach the victim at trial. (Id. at pp. 66-72 [94 L.Ed.2d at pp. 63-67].)
The Ritchie plurality also considered the defendant's claims under the due process clause of the Fourteenth Amendment, citing, inter alia, Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady). (Ritchie, supra, 480 U.S. at p. 56 [94 L.Ed.2d at pp. 56-57].)*fn2 "It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. [Citations.] Although courts have used different terminologies to define 'materiality,' a majority of this Court has agreed, '[e]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.' [Citations.] [¶] At this stage, of course, it is impossible to say whether any information in the [agency's] records may be relevant to [the defendant's] claim of innocence, because neither the prosecution nor defense counsel has seen the information, and the trial judge acknowledged that he had not reviewed the full file." (Ritchie, at p. 57 [94 L.Ed.2d at p. 57].)
In rejecting the state's argument that disclosure would contravene the state's interest in confidentiality and the statutorily privileged nature of the agency's files "on the mere speculation that the file 'might' have been useful to the defense," Ritchie stated: "Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances. This is not a case where a state statute grants [the agency] the absolute authority to shield its files from all eyes. [Citation.] Rather, the Pennsylvania law provides that the information shall be disclosed in certain circumstances, including when [the agency] is directed to do so by court order. [Citation.] Given that the Pennsylvania Legislature contemplated some use of [the agency's] records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is 'material' to the defense of the accused. [¶] We therefore affirm the decision of the Pennsylvania Supreme Court to the extent it orders a remand for further proceedings. [The defendant] is entitled to have the [agency] file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by [the agency] contain no such information, or if the nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction." (Ritchie, supra, 480 U.S. at pp. 57-58 [94 L.Ed.2d at pp. 57-58], fns. omitted.)
Here, the confidential nature of juvenile dependency case files generated by the government is not absolute in that certain parties have access to the information upon petition and court order. (Welf. & Inst. Code, § 827; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1314.) As in Ritchie, "[t]his is not a case where a state statute grants [the agency] the absolute authority to shield its files from all eyes." (Ritchie, supra, 480 U.S. at p. 57 [at p. 57].) N.M. was an obviously crucial prosecution witness, as she was the alleged victim. In camera review of the files was the proper procedure, as is our review of the records and the trial court's ruling on appeal. (See People v. Webb, supra, 6 Cal.4th at p. 518.)
The trial court did review the CPS files relating to N.M. in camera. The court stated it reviewed all of the documents "for any even arguably materially inconsistent statements by trial witnesses or any other conceivable Brady information." The court concluded, "All the statements were either consistent with what was testified to at trial or certainly consistent with what they were either impeached on or attempted impeachment was done on them. And that led me to conclude that those statements even if inconsistent to the trial testimony has [sic] certainly been discovered or turned over as part of the discovery and other documents because, again, they ...